Salazar v. Novalex Contr. Corp

In Salazar v. Novalex Contr. Corp., 72 A.D.3d 418, 897 N.Y.S.2d 423 (1st Dept., 2010), the Appellate Court held that where a worker traversing a basement floor in the process of laying cement fell into an uncovered trench approximately two feet wide and four feet deep, the protections of the Labor Law 240 were applicable. The Appellate Court held that the difference between the level of the basement floor and the bottom of the trench into which the plaintiff Salazar fell constituted an elevation related risk to the plaintiff to which Labor Law 240 applied. In the instant action, the plaintiff testified that the depth of the hole into which he fell was two to three feet deep. While the Salazar court stated that a hole the depth of eighteen inches or less did not qualify as a sufficient elevation related differential, there is no bright line rule as to what depth is sufficient and/or necessary to expose the worker to a gravity related hazard requiring protection as opposed to a hazard that is just one of the usual and ordinary dangers associated with a construction site. Moreover, in addressing the regulations applicable to the plaintiff's Labor Law 241 claim the Salazar court states that "this Court has defined the term 'hazardous opening' as an opening 'large enough for a person to fit into.'"